Exhibit 10.54
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is made and entered into this
17th day of April, 2001 by and between eXcelon Corporation, a Delaware Corporation ("EXLN"); and
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, an individual residing at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
("Hinchcliffe").
W I T N E S S E T H T H A T:
WHEREAS, EXLN has employed Hinchcliffe most recently as Vice President, Worldwide Sales; and
WHEREAS, EXLN and Hinchcliffe wish to set forth the terms of the termination of Hinchcliffe's
employment with EXLN;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, EXLN and Hinchcliffe hereby agree as follows:
1. Hinchcliffe hereby agrees to resign as Vice President, Worldwide Sales and as an
executive officer of EXLN, effective as of April 17, 2001 (the "Effective Date of Termination"). At
the request of EXLN, Hinchcliffe will execute and deliver to EXLN a separate instrument embodying
such resignation.
2. EXLN agrees to pay Hinchcliffe a total amount of $233,333.33 payable in twenty-four (24)
installments of $9,722.22 on a semi-monthly basis, less applicable deductions, for a period of
twelve (12) months in accordance with EXLN's standard payroll policies, and EXLN shall provide
Hinchcliffe with medical and dental insurance coverage under COBRA, at EXLN's expense but less
Hinchcliffe's applicable contribution for such insurance, for a period of twelve (12) months from
the Effective Date of Termination; provided, however, that if Hinchcliffe becomes re-employed with
another employer and is eligible to receive such insurance coverage under another employer-provided
plan, EXLN's contributions toward the insurance coverage set forth herein shall terminate
immediately and Hinchcliffe shall have the election to continue such coverage, at Hinchcliffe's sole
expense. Notwithstanding the foregoing, in the event that Hinchcliffe relocates his domicile outside
the United States, the foregoing amount of $233,333.33 shall become payable in sixteen (16)
installments of $14,583.33 on a semi-monthly basis, less applicable deductions, for a period of
eight (8) months in accordance with EXLN's standard payroll policies.
3. From the Effective Date of Termination until April 17, 2002, and in partial
consideration of the payments described in the immediately preceding paragraph, Hinchcliffe shall
continue as a consultant of EXLN, on a case-by-case basis, and shall use all reasonable efforts to
perform such duties as the Board of Directors of EXLN, or the Chief Executive Officer of EXLN, shall
reasonably assign to him.
4. EXLN agrees that Hinchcliffe may retain the personal computer provided to him during his
employment with EXLN, provided that Hinchcliffe agrees and acknowledges by his signature below that
(i) all Confidential Information and material belonging to EXLN, including without limitation all
software, documentation, records, forms, customer lists and data, has been removed and deleted from
such computer; (ii) Hinchcliffe has ceased any and all utilization of such Confidential Information
and material; and (iii) no copies of such Confidential Information and material have been made.
5. All options which have heretofore been granted to Hinchcliffe under EXLN's 1997
Nonqualified Stock Option Plan,1996 Stock Incentive and Nonqualified Stock Option Plan and/or 1996
Employee Stock Purchase Plan (the "Options") shall be exercisable, and expire, in accordance with
their terms in effect as of the date of this Agreement. The Options shall continue to vest until the
Effective Date of Termination and no Option or portion thereof shall vest after the Effective Date
of Termination. Notwithstanding the foregoing and anything contrary set forth in the terms and
conditions of the foregoing plans, and subject to the Board of Directors of EXLN's approval,
Hinchcliffe shall have the right to exercise any fully vested Options, as of the Effective Date of
Termination, within six (6) months after the Effective Date of Termination.
6. Hinchcliffe specifically acknowledges that the payments made and benefits extended
hereunder by EXLN are in lieu of all other benefits and payments which otherwise may have been
payable to Hinchcliffe as a result of his separation from EXLN under benefit plans or policies of
EXLN, including, without limitation, additional severance, bonus payments and separation pay, and
Hinchcliffe hereby waives any rights he may have in or to any such other benefits or payments, it
being the intention of the parties hereto to convert and merge all such rights into this Agreement.
7. Hinchcliffe hereby acknowledges and ratifies his obligations under the NON-COMPETITION,
NON-SOLICITATION, NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT, dated September 30, 1999 between
Hinchcliffe and EXLN, which is attached hereto and incorporated herein by reference, and further
agrees to be bound by the terms thereof.
8. Hinchcliffe, for good and valuable consideration the receipt of which is hereby
acknowledged, for himself and his legal representatives, successors, and assigns hereby releases,
remises, and forever discharges EXLN, its subsidiaries and affiliates, and their respective past,
present and future agents, officers, directors, shareholders, attorneys, employees, servants, and
representatives and all of EXLN's heirs, successors, predecessors, and assigns, of and from all
manner of actions, causes of actions, suits, debts, demands, damages, costs, expenses, obligations,
agreements, and claims whatsoever, at law, in equity, or otherwise, known or unknown, which
Hinchcliffe has or may have, either now or at any time before the date of this Agreement, against
EXLN, including but not limited to any claims arising out of or in any way related to Hinchcliffe's
employment by EXLN, Hinchcliffe's resignation as Vice President, Worldwide Sales and as an executive
officer of EXLN, and/or the termination of Hinchcliffe's employment by EXLN; provided, however, that
any claims that Hinchcliffe may make against EXLN for breach of this Agreement are specifically
exempted from this release. Hinchcliffe acknowledges and agrees that the payments and benefits to be
made to Hinchcliffe pursuant to this Agreement are over and above any other money or benefits that
would be due to Hinchcliffe under the terms of his employment with EXLN and EXLN's usual policies
and practices.
9. Hinchcliffe and EXLN hereby agree to be publicly supportive of each other. Hinchcliffe
agrees not to criticize, disparage or otherwise comment negatively about, orally or in writing,
directly or indirectly, EXLN, its subsidiaries, affiliates or any of their respective past, present
or future officers, directors, employees, agents, businesses, products or services. Hinchcliffe
agrees to use his best efforts to ensure that none of the members of his family so criticize or
disparage any of such persons or entities. Hinchcliffe further agrees that he shall be publicly and
privately cooperative and supportive of EXLN in regard to its personnel, corporate practices and
policies and other matters. EXLN agrees not to disparage or make negative statements about
Hinchcliffe and to be publicly and privately cooperative and supportive of Hinchcliffe in regard to
his transition.
10. Hinchcliffe agrees that, except as may be required by law or as may be mutually agreed,
Hinchcliffe will keep the terms and existence of this Agreement completely and strictly
confidential, and that Hinchcliffe will not hereafter disclose any information concerning this
Agreement to anyone, except to the extent necessary to enforce this Agreement.
11. With the exception of the personal computer set forth above, Hinchcliffe agrees to
return any and all property, whether tangible or intangible, provided to Hinchcliffe by EXLN, as a
condition precedent to EXLN's obligations hereunder.
12. This Agreement and the NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND
DEVELOPMENTS AGREEMENT, attached hereto, embodies the entire understanding and agreement between the
parties, and supersedes all other oral or written agreements or understandings, between the parties
regarding the subject matter hereof, including without limitation any terms and conditions of any
employment agreement or other similar agreement(s), and it shall be binding and inure to the benefit
of the successors and assigns of each. No change, alteration or modification hereof may be made
except in a writing signed by both parties hereto. This Agreement and the rights and obligations of
the parties hereunder shall be construed in accordance with and governed by the laws of The
Commonwealth of Massachusetts (disregarding any choice of law rules which may look to the laws of
any other jurisdiction).
13. EXLN shall require any successor via a Change in Control (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that EXLN would be required to perform it if no
such succession had taken place.
14. The parties represent and acknowledge that in executing this Agreement they do not rely
and have not relied upon any other representation or statement made by any person or entity with
regard to the subject matter, basis, or effect of this Agreement, with the sole exception of the
provisions set forth herein. Mistakes of fact or law shall not constitute grounds for modification,
avoidance or rescission of the terms and conditions of this Agreement. The fact that a party or
counsel for a party drafted a provision or provisions of this Agreement shall not cause that
provision or those provisions to be construed against the drafting party.
15. This Settlement may be executed in one or more counterparts, each of which when so
executed shall be deemed an original, but all of which together shall constitute one and the same
instrument.
16. In entering into this Agreement, the parties represent that they have had the
opportunity to seek the advice of legal counsel and that the terms of the Agreement have been
completely read and explained to them and that those terms are fully understood and voluntarily
agreed to.
EXLN: Hinchcliffe:
eXcelon Corporation ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By:_____________________________ By:___________________________
Name:___________________________ Name:_________________________
(Printed or Typed) (Printed or Typed)
Title:__________________________
